On whether equivalent interstate traffic convictions count for the purposes of section 9 of the Road Transport Act 2013 (NSW)

By David P Rofe (The author would like to thank Ms Lily Davies for her assistance with this post)

There is confusion amongst the legal fraternity as to whether equivalent interstate traffic convictions can be taken into account in determining whether an offence under the Road Transport Act 2013 (NSW) (‘the Act’) is a ‘first offence’ or a ‘second or subsequent offence’. This area of law is in need of reform, or a Supreme Court judgment, in order to provide clarification to legal practitioners, police prosecutors, and Magistrates. The source of the confusion is analysed below.

Introduction

Many legal minds are of the position that equivalent interstate convictions which took place after midnight 1 July 2013 do not count towards calculating whether an offence, under the Act, is a ‘first offence’ or a ‘second or subsequent offence’ because there has been no declaration, as ostensibly provided under s 9(6) of the Act, to this effect. There is an opposing argument, however. That is, as a matter of statutory interpretation, the definition of a ‘major offence’ in s 4(h) captures equivalent interstate convictions for the purpose of determining whether an offence is a ‘first offence’ or a ‘second or subsequent offence’ under s 9 of the Act. This is further supported by the reasoning in DPP (NSW) v Beaman (2005) 64 NSWLR 634 (‘Beaman’), and in the author’s view is the preferred interpretation.

A general examination of the law in question will take place, before the two main competing interpretations are examined in further detail below:

(1) Application of section This section applies to the determination of whether an offence against a provision of this Act or the statutory rules is:

(a) a first offence, or

(b) a second or subsequent offence.

Note. The Act and the statutory rules provide in some cases for different penalties or disqualification periods, or for forfeitures or the making of mandatory interlock orders, in connection with an offence depending on whether a particular offence is a first offence or a second or subsequent offence.

(2) Second or subsequent offence If a person is convicted of an offence (the new offence) against a provision of this Act or the statutory rules, the new offence is a second or subsequent offence only if:

(a) the person, within the applicable re-offending period (if any) for the offence concerned, was convicted of another offence (the previous offence) that was:

(i) an offence against the same provision, or

(ii) an offence against a former corresponding provision, or

(iii) an equivalent offence to the new offence, and

(b) the occasion when the new offence occurred was different from the occasion when the previous offence occurred.

(3) Except as provided by subsection (4), the applicable re-offending period for a particular offence for the purposes of subsection (2) (a) is:

(a) the period of 5 years, or

(b) such other period as may be specified by a provision of this Act (in the case of offences against this Act) or the statutory rules (in the case of offences against the statutory rules) as the applicable re-offending period for the offence for the purposes of this section.

(4) An offence does not have an applicable re-offending period if a provision of this Act (in the case of offences against this Act) or the statutory rules (in the case of offences against the statutory rules) specifies that there is no such period for the offence for the purposes of this section.

(5) A previous offence is an equivalent offence to a new offence for the purposes of subsection (2) (a) (iii) if:

(a) where the new offence is an offence against section 54 (1)—the previous offence was an offence against section 53 (3) or 54 (3) or (4) or a corresponding former provision or a major offence, or

(b) where the new offence is an offence against section 54 (3)—the previous offence was an offence against section 53 (3) or 54 (1) or (4) or a corresponding former provision or a major offence, or

(c) where the new offence is an offence against section 54 (4)—the previous offence was an offence against section 53 (3) or 54 (1) or (3) or a corresponding former provision or a major offence, or

(d) where the new offence is an offence against a provision of Chapter 5 or Schedule 3—the previous offence was a major offence, or

(e) a provision of this Act (in the case of offences against this Act) or the statutory rules (in the case of offences against the statutory rules) declares the offence to be an equivalent offence to another offence for the purposes of this section.

(6) Without limiting subsection (5) (e), an offence against a law of another jurisdiction may be declared to be an equivalent offence for the purposes of this section.

(7) In determining whether an offence is a second or subsequent offence, the following matters are immaterial:

(a) the order in which the offences concerned are committed,

(b) whether or not the offences concerned were subject to the same penalties.

(8) First offence An offence against a provision of this Act or the statutory rules is a first offence if it is not a second or subsequent offence.

(9) If the court is satisfied that a person is guilty of an offence but cannot determine (from the information available to the court) whether the offence is a first offence for which the person was convicted, the court may only impose a penalty for the offence as if it were a first offence.

(underlined emphasis added)

Some observations about s 9 of the Act should be made:

With regard to s 9(6), ‘another jurisdiction’ is defined in s 4-Definitions as ‘a jurisdiction other than this jurisdiction’. Further, ‘jurisdiction’ is defined in s 4 as ‘the Commonwealth or a State of Territory’. Moreover, ‘this jurisdiction’ is defined in s 4 as ‘New South Wales’. It is to be noted that s 9(6) does not contemplate only geographical jurisdiction, given the inclusion of the Commonwealth.

‘[E]quivalent offence’ is defined in s 9(5) and, thus, should be used when interpreting the Act. In addition to this, ‘major offence’, which appears in s 9(5), is also defined in s 4. Whether a ‘new offence’ is a ‘second or subsequent offence’ is limited by the words ‘only if’, with regard to a ‘new offence’ falling within s 9(2)(a)(i)-(iii) and, thus, with respect to a new offence being treated as a ‘second or subsequent offence’.

Section 9(6) does not limit s 9(5)(e). However, s 9(5)(e) provides for declarations to be made by a ‘provision of this Act (in the case of offences against this Act) or the statutory rules (in the case of offences against the statutory rules)’. Section 9(5)(e) does not provide for a declaration to be made by way of statutory instrument nor by way of government Gazette. Moreover, ss 18–19 state that ‘[T]he Minister may declare, by order published in the Gazette, that the road transport legislation or any specified provision of the road transport legislation…’ That is to say, the Act contemplates declarations being made by order published in the Gazette. Moreover, ss 18-19 allow for flexibility with regard to those ministerial declarations, given the subject matter of those declarations.

Further to the above, the words ‘declared’ or ‘declares’ are not defined in s 4 nor anywhere within the Act. And, further to this, the words ‘declared’ or ‘declares’ are imbued with different meanings throughout the Act. For example, the Act contemplates declarations made by Parliament, as with s 9; the Act contemplates declarations made by the Executive, as with ss 18 -19; and, the Act contemplates declarations which operate automatically by virtue of the Act itself, which is another kind of Parliamentary declaration, as with s 217 ‘Declarations of persons as habitual traffic offenders’.

Some sections of the Act read as follows: Part 4.5 ‘Written-off vehicles’ – s 104 Determination of ‘first offences’ and ‘second and subsequent offences’ against this Part reads ‘For the purposes of section 9 in its application to offences against provisions of this Part, it is declared that there is no applicable re-offending period for such offences.’ Also see s 198 Application of Fines Act 1996 to penalty notices under this Division which reads ‘A penalty notice under this Division is declared to be a penalty notice for the purposes of the Fines Act 1996.’ It would appear that when declarations are made by way of a provision of the Act, in the way that s 9 contemplates, that they are done so explicitly.

History of legislation

With regard to the history of NSW legislation directed towards traffic offences, s 9 is significant given that previous Acts which dealt with traffic offences (see the Road Transport (General) Act 2005, the Road Transport (General) Act 1999 or the Traffic Act 1909) did not legislate for a provision which dealt with the determination of whether a traffic offence was a ‘first offence’ or a ‘second or subsequent’ offence. That is to say, since 1 July 2013, there has been a legislative scheme in operation which addresses calculating whether an offence is a ‘first offence’ or a ‘second or subsequent’ offence.

On 12 November 2004, the Magistrate at Tamworth Local Court sentenced the respondent to this Supreme Court appeal for contravening s 9(2)(a) of the Road Transport (Safety and Traffic Management) Act 1999 (NSW) (‘the RTSTM Act’). This was a low-range PCA offence. Section 25 of the Road Transport (General) Act 1999 (NSW) (‘the RTG Act’) provided for different penalties, depending upon whether an offender had been convicted of a ‘major offence’, as found in s 3 of the RTG Act, within the preceding five years. The respondent had been convicted of an alcohol related traffic offence in Queensland on 4 September 2000 (‘the Queensland conviction’). The Magistrate had to decide whether the Queensland conviction should be taken into account when deciding what penalty to impose, with regard to s 25(3) of the RTG Act.

In deciding that the Queensland conviction should not be taken into account, the Magistrate had regard to R v Green [1982] 2 NSWLR 933 (‘Green’) and sought to distinguish the language of the RTG Act and specifically use of the phrase ‘major offence’ in s 2, by virtue of s 4E, from the Motor Traffic Act 1909 (NSW) which was under consideration in 1982 in the case of Green. The Magistrate concluded:‘It seems to me the words are different. This is an opportunity for somebody to take it to the Supreme Court and have it sorted out. So I am holding that in fact those words [‘other crimes and offences’, as found in the Motor Traffic Act 1909 (NSW)] do not appear, it says major offence. Major offence (sic) seems to me to be confined to New South Wales legislation. I do not know that other States and territories use the words major offence. It really needs to be sorted out’.

This was despite the definition of ‘major offence’, as found in s 3 of the RTG Act, stating that:

(a) a crime or offence referred to in the definition of ‘convicted person’ in section 25 (1), or

(b) any other crime or offence that, at the time it was committed, was a major offences (sic) under this Act or the Traffic Act 1999’

(underlined emphasis added).

An appeal was lodged and the Director of Public Prosecutions took carriage of the matter as the appellant.

The Issue on Appeal

Whether the Magistrate erred in law in determining that the Queensland conviction could not be taken into account when determining the applicable maximum monetary penalty and the applicable automatic and minimum disqualification periods for the low-range PCA offence.

The Orders and Reasoning

The appeal was allowed (costs were awarded to the appellant but Latham J made an order under the Suitors Fund Act 1951 (NSW). In uniformity with that order, the Director agreed not to pursue the respondent personally for those costs).

Latham J found that the Magistrate erred in law by having too narrow an approach to the words considered as set out above in the Magistrate’s reasons.

Latham J justified her Honour’s orders with the following reasons:

Section 26(2) of the RTG Act provided for the recognition of disqualifications in other States at [9], i.e. the RTG Act contemplated the jurisdiction of other States.

The RTSTM Act was part of national agenda for a uniform set of road rules, at [10].

The legislative history of s 25 and its predecessor s 10 of the Motor Traffic Act 1909 (NSW) supported the position that interstate convictions were to be taken into account, at [11]-[21]. This is especially so when one considers the ratio of Green, at [22]-[26]. In Green, the Court of Criminal Appeal decided that the words ‘other crimes and offences’ were not confined to crimes and offences committed in the State of New South Wales, as a matter of construing that Act as a whole. Moreover, the subsequent amendments to s 10 of the Motor Traffic Act 1909 (NSW), including the removal of s 10(3A) and the insertion of s 10A, did not indicate an intention that the disqualification provisions should not have regard to interstate offences at [21].

Considering the above reasons, there was nothing in the RTG Act nor the RTSTM Act that indicated that the said Acts were not to have extraterritorial effect, at [27]-[31]. In particular, Latham J said at [29]:

‘The replacement of the terms ‘other crimes and offences’ with ‘major offences’ is not significant and whether or not other States adopt this technique of legislative drafting is not the point. The issue of substance is whether other States have offences of the same or similar character to the offences defined as major offences. In the present case the relevant Queensland conviction has an obvious counterpart in s 9 of the Act and is unambiguously a major offence’ (emphasis added).

Further, at [32]:

‘[i]n any event, it is evident in Green that it was not the phrase ‘other crimes and offences’ of itself which persuaded the Court of Criminal Appeal of its [section 10 of the Motor Traffic Act 1909] territorial application. It was the context and purpose of the provision [section 10 of the Motor Traffic Act 1909] in its statutory context which their Honours found persuasive. It is submitted that nothing in the Safety Act and the General Actindicates a narrow territorial application of s 25; nor is there any indication in the apparent purpose of those enactments, which leads to the conclusion. I find that submission persuasive in the circumstances’.

The Competing Interpretations

The issue now is whether s 9, and specifically s 9(6), as it sits within the Act as a whole, displaces the reasoning found in Beaman and Green to the extent that offences in another jurisdiction do not count for the purposes of s 9. An argument is that, because a section devoted to calculating first and second offences now exists in the Act, as opposed to the previous traffic legislation, this means that s 9 generally indicates a ‘narrow territorial application’ in the words of Latham J. It follows that Parliament would have to legislate and declare for each and every offence found in another jurisdiction, for an offence in another jurisdiction to apply with regard to the s 9 calculation and, further, that Parliament saw the previous inclusion of interstate offences as mischief and sought to rectify that mischief by the enactment of s 9. (It should be noted that the Roads Maritime Service has provided advice [not this specific advice] to police prosecutors that this is presently the case and that those prosecutors have acted upon such advice. Furthermore, Magistrates have decided that this is correct at law, in the author’s experience, with at least one deferring to the advice of the Roads and Maritime Service as submitted by the police prosecutor). In other words, given that there is now an express legislative regime with regard to calculating whether an offence is a ‘first offence’ or a ‘second or subsequent offence,’ that now overrides the previous position which was outlined in Beaman.

There are difficulties with the above approach, however. As noted above, in s 9(5) of the Act, ‘equivalent offence’ refers to ‘major offence’. Major offence is defined in s 4 of the Act as follows:

major offence means any of the following crimes or offences:

(a) an offence by a person (the offender), in respect of the death of or bodily harm to another person caused by or arising out of the use of a motor vehicle driven by the offender at the time of the occurrence out of which the death of or harm to the other person arose, for which the offender is convicted of:

(g) an offence of aiding, abetting, counselling or procuring the commission of, or being an accessory before the fact to, any crime or offence referred to in paragraph (a)–(f),

(h) any other crime or offence that, at the time it was committed, was a major offence for the purposes of this Act, theRoad Transport (General) Act 2005, theRoad Transport (General) Act 1999or theTraffic Act 1909. (Emphasis added)

If ‘major offence’ in (h) were to mean the definition in which it is found, then that is circular and illogical. This cannot be correct. Thus, the phrase may be read as ‘a major offence for the purposes of this Act…’, which is a more liberal reading in so far that it has regard to the purposes of the Act. This competing argument is that ‘major offences’ in (h) captures interstate offences for the purposes of s 9 of the Act. This position is supported by the reasoning in Beaman and Green for the reasons that follow:

With regard to construing the Act as a whole, it is important to understand that the Act is what is known as a consolidating Act. Parliament sought to bring together several Acts into one Act which was the Act. In the Second Reading Speech to the Road Transport Bill 2013 (Parliamentary Debates, Legislative Assembly, 19 February 2013 at page 38) the Minister said that:

‘The Road Transport Bill 2013 represents a simplification of the structure of legislation without major changes to policy. It amalgamates into one Act the Road Transport (Driver Licensing) Act 1998, the Road Transport (Vehicle Registration) Act 1997 and the Road Transport (Safety and Traffic Management) Act 1999, and the compliance and enforcement provisions of the Road Transport (General) Act 2005 applicable to road transport legislation generally. It is intended to enhance the understanding of New South Wales road users of their legal rights and responsibilities. The changes include the removal of inconsistency, repetition, anomalies and redundancy’.

‘[i]n the 1990s, the National Transport Commission began to develop a series of modules for national model road transport legislation. Each module dealt with a different and discrete topic such as heavy vehicle charges, driver licensing, vehicle operations and compliance and enforcement. The only module that remains to be completed is the proposed Heavy Vehicle National Law….’ (Explanatory Note to the Road Transport Bill 2013, pages 1-2).

The Road Transport Bill 2013 was the piece of legislation that would address that final step in the national scheme for New South Wales. The proposed Explanatory Note goes on to state, after a comparison of the existing law – the law which the Act consolidated -, that ‘[e]xcept where otherwise indicated in the explanatory note, this Bill substantially re-enacts provisions of the existing Acts and statutory rules’ (Ibid at pages 3-4). This Explanatory Note says nothing about recognising offences in another jurisdiction or not recognising offences in another jurisdiction.

Moreover, Latham J’s reasoning in Beaman at paragraphs [11]-[21] is consistent with s 9(6) of the Act, in so far as s 9(6) does not displace the previous position of the Road Transport Legislation but adds to that position. For example, s 9(6) provides for offences beyond those recognised in Beaman re: ‘major offence for the purposes of this Act…’ whether they be different in kind to a major offence, according to interstate legislation and/or the addition of offences which are found in Commonwealth legislation i.e. jurisdiction beyond that of solely geographical jurisdiction. The ratio of Green also supports this point, with regard to constructing the Act. Moreover, Latham J’s point that when considering other interstate offences, ‘the issue of substance is whether other States have offences of the same or similar character to the offences defined as major offences’ at [29], is given effect through s 4 ‘major offence’ (h).

Latham J’s reasoning in Beaman at [9] also applies because the Act contemplates the jurisdiction of other States, such as recognising the disqualification in other states in s 54(11) of the Act – ‘Offences by disqualified drivers or drivers whose licences are suspended or cancelled’. That is the Act contemplates the jurisdiction of another jurisdiction generally. This is especially so given that ‘Another Jurisdiction’ is defined in the Act.

In summation, given that the latter argument, which posits that equivalent interstate traffic convictions count with regard to s 9 of the Act, is supported by case law and provides an interpretation which gives effect to the principles of statutory interpretation, such as construing the Act in a purposive approach, it is the better argument. But it is not the argument that has been accepted by Magistrates, Prosecutors, and the Road Maritime Service to the benefit of defendants in the good State of New South Wales.